Town and country planning – Planning permission – Wind turbine – Claimant unsuccessfully applying for permission to erect wind turbine – Defendant secretary of state dismissing appeal against refusal – Claimant applying for order quashing decision – Whether inspector failing to have proper regard to material considerations – Whether inspector erring in findings and conclusions on heritage assets – Application granted
The claimant applied to the second defendant local authority for planning permission for a wind energy development comprising the erection of one wind turbine, with a maximum overall height of up to 84 metres together with access tracks, crane pad areas, electricity sub-station, temporary construction compound and amended vehicular access on agricultural land at Witherdon Wood, near Ashwater, Devon. The second defendants refused permission and an inspector appointed by the first defendant secretary of state dismissed the claimant’s appeal against that decision. The appeal was determined by written representations and following a site visit.
The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision. It contended that the inspector had: (i) failed to have proper regard to material considerations in the form of the second defendants’ landscape character and sensitivity assessments, make a finding whether the proposal complied with the strategy and to give adequate reasons for her decision; and (ii) erred in her findings and conclusions on heritage assets.
Held: The application was granted.
(1) Reading the decision as a whole and in a straight-forward way, it was in clear that the inspector had had in mind the important characteristics relevant to the assessment of character. The inspector had had regard to the guidance against siting wind turbines in prominent locations and the need to assess carefully the relationship between the proposed development and other wind turbine development in the locality. Based on her assessment of the material submitted to her, the written representations and her site visit, the inspector had been entitled to conclude, and had given adequate reasons for deciding, that the impact of the proposed development would not be acceptable: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin); [2001] PLSCS 30, South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953, East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] EWCA Civ 137; [2014] EGILR 23 and Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) considered.
(2) In order to apply the principle that principle that mistake of fact might give rise to unfairness, it had to be shown that the tribunal whose decision was under appeal had made a mistake as to an established fact which was uncontentious and objectively verifiable, including a mistake as to the availability of evidence on a particular point, that the appellant or his advisers had not been responsible for the mistake, and that the mistake had played a material, though not necessarily decisive, part in the tribunal’s reasoning. The conditions for the application of the principle were satisfied in the present case. The inspector had proceeded on the basis of an error of fact in relation to a local church which had played a material part in the decision she reached. That gave rise to unfairness to the claimant and amounted to an error of law. Alternatively, the inspector had fallen into error by failing to properly inform herself about the evidence relevant to her decision in the environmental report as a means of assessing the visual effect of wind turbines on the landscape and features within it: E v Secretary of State for the Home Department [2004] QB 1044 applied.
Having regard to section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, there was at least the possibility that the overall balance would have been different if the inspector had proceeded to determine the appeal on the correct factual basis. The claimant was prejudiced by the inadequacy of reasoning in the decision letter, in particular as to which, if any, heritage assets would be subject to a “minor negative” impact from the proposed development.
Jeremy Pike (instructed by the Legal Department of Ecotricity Next Generation Ltd) appeared for the claimant; Daniel Kolinsky (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Eileen O’Grady, barrister
